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Wednesday, June 06, 2018

The White House defines free speech

When asked how President Trump reconciled his belief that a baker has a free-speech right not to sell a cake for a same-sex wedding with his insistence that there is no free-speech right to kneel (or just stay in a different location), Sarah Huckabee Sanders said: "The president doesn’t think this is an issue simply of free speech. He thinks it’s about respecting the men and women of our military; it’s about respecting our national anthem.”

Someone opposed to the position of the baker in Masterpiece could say something similar: "It isn't simply an issue of the baker's free speech. It's about respecting same-sex couples who wish to get married and to shop in the marketplace on the same terms as everyone else; it's about respecting equality." Sanders, on behalf of the President, is really saying there is no such thing as free speech. Speech should be stopped when the President agrees with the message being criticized (the flag and the power of police to use whatever force they deem necessary), while speech should be allowed when the President disagrees with the message being criticized (equal rights for same-sex couples).

That one's position on free speech depends on what is on the other side is not surprising; many people approach the First Amendment this way. It is disturbing when it becomes the official position of the White House, as opposed to the position of a bunch of college students.

Next Thursday, June 14, marks the 75th anniversary of West Virginia Bd. v. Barnette. It is ironic and troubling that the principle that a person cannot be compelled to utter patriotic tropes or engage in patriotic rituals is again up for grabs, as the rhetoric around this heats up and makes this into a significant free-speech controversy.

Posted by Howard Wasserman on June 6, 2018 at 08:11 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink

Comments

"Yeah, but Howard, also according to the President "constant negative press covfefe." You can't assume his words have any actual meaning behind them in terms of making sense or being consistent."

Even as a Trump-supporter, I have to agree with this wholeheartedly. Obama was the articulate one.

Posted by: Flag Waver | Jun 7, 2018 8:13:53 AM

Yeah, but Howard, also according to the President "constant negative press covfefe." You can't assume his words have any actual meaning behind them in terms of dictating law or policy.

Posted by: Derek Tokaz | Jun 6, 2018 4:55:51 PM

Howard--

Is President Trump making the rules for the NFL? Or is it the Department of Defense during the Obama Administration?

"The United States Department of Defense paid the National Football League $5.4 million between 2011 and 2014, and the National Guard [paid] $6.7 million between 2013 and 2015 to stage on-field patriotic ceremonies as part of military recruitment budget-line items."

htt ps://w ww.snopes.co m/fact-check/nfl-sideline-anthem/

Posted by: Howard's corner | Jun 6, 2018 3:40:41 PM

According to the President, staying the in the locker room is the same as kneeling.

Posted by: Howard Wasserman | Jun 6, 2018 2:42:28 PM

Barnette is not up for grabs. The NFL players can stay in the locker-room during the anthem. They don't have to be part of the anthem, just as the baker doesn't have to be part of the gay wedding by baking something for it.

Posted by: Nebul | Jun 6, 2018 10:15:04 AM

Howard,

Are you trying to extract a coherent legal theory from the language of Sarah Sanders? You'll end up with the jurisprudence of "I already answered your question" and "The President has made his views very clear."

God, I miss Spicey.

Posted by: Derek Tokaz | Jun 6, 2018 10:00:54 AM

Of course it is about free speech . It is typically always so , that it is about free speech . This is not the issue at all . For the issue is not merely about free speech , but , free speech Vs. other competing constitutional ( or not ) values .

Sometimes free speech shall prevail , sometimes not . That's depend , upon legislation , and courts, to decide , in every given case or occurrence , what would take over , free speech , or : other values .

Whatsoever , this is anyway the situation. The congress and courts , just must do more , to define more precisely , when one takes over the others .

A person for example , can't petition and get highly classified information, just thanks to his right for free speech . National security , shall take over of course ( typically ) .The same for defamation :

One can't have the free speech right , to stain the reputation of a person , and actually ,purely and maliciously invent factual story which shall hurt him and his reputation ( differentiated from expression of subjective opinion).

Here I quote from Sarah Palin Vs. The New York times company :

"Under New York law, a plaintiff must establish five elements to recover in libel: 1) a written defamatory statement of fact concerning the plaintiff; 2) publication to a third party; 3) fault (either negligence or actual malice depending on the status of the libeled party); 4) falsity of the defamatory statement; and 5) special damages or per se actionability (defamatory on its face)." Celle v. Filipino Reporter Enterps. Inc., 209 F.3d 163, 176 (2d Cir. 2000) "

End of quotation :

That is to say , that there is a limit to free speech , you can't maliciously invent factual stories on one person .

The same here ( the subject of the post ) :

The congress , the courts , should decide simply :

What takes over , respect to the national anthem , or free speech . And so , concerning every given case or situation , deems to be common , important , crucial , having critical mass , occurred frequently and so forth ….

Link to the ruling :

https://lawprofessors.typepad.com/files/file0.491327369856787.pdf

Thanks

Posted by: El roam | Jun 6, 2018 9:39:56 AM

This comment is only tangentially related, but it's been nagging me so I thought I might share it here.

Reconciling various positions that in their own ways somehow implicate the right to free speech -- or expression more generally -- is a notoriously tricky challenge. One way to gain clarity is to identify (so as to set aside) red herrings. For example, describing the expressive act of kneeling while the national anthem is being played in terms of a "right" fails to engage the real issue that real people (i.e., not law professors isolating potential technicalities) disagree about when it comes up. The real issue is: what does the act "mean" (or "represent"), such that some portions of the public may criticize others for it? Is the act a sign of disrespect towards the military, or a protest against police brutality?

Liberals have tended to overwhelmingly opt for the latter, based on the expressed intentions of the people actually doing the kneeling -- the NFL players. But intent *cannot* be the criterion upon which meaning is imputed. Why not? Well, the reason I cannot utter slurs like the n-word is that there is an accepted public meaning imputed to that word. I cannot utter the word and then say, "Well, my intent in uttering the word was X, not Y, so even if many of you impute Y to my utterance, my intent was otherwise, and my intent controls what my utterance means." Liberals have rejected that line of thought for slurs, so they cannot now adopt intent as the test for whether an action means one thing or another.

Returning from the tangent, I think it's reasonable for the President (the office, that is) to have a view on what an expressive act is "about." He is, after all, the elected leader of a democracy. He's not saying certain speech must be banned; he's saying certain representations should not be tolerated in our public spaces. Swap out kneeling for the anthem with the utterance of a slur. From a legal perspective, the issue is the same -- under certain conditions, you've got a Constitutional right to that speech. But that is not what those who protest the kneeling are disputing. They are complaining that a certain representation is distasteful and ought to be discouraged in public spaces, much like the utterance of the n-word. Liberals should recognize this position. It is theirs!

Posted by: GradStudent | Jun 6, 2018 9:32:56 AM

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